Mississippi Advisory Opinions June 14, 1996: AGO 000011355 (June 14, 1996)

AGO 000011355.

Dear Mr. Carter:

You have asked for our opinion as follows:

Section 3 of House Bill 472 requires the Secretary of State to refuse to file an initiative petition on the following grounds: (c) That one or more signatures appearing on the petition were obtained in violation of Section 23-17-17(2), Section 23-17-57(2), or Section 23-17-57(3). Section 23-17-17(2) states that only qualified electors may circulate a petition or obtain signatures on a petition. Section 23-17-57(2) makes it unlawful for a person to give or offer to give consideration to induce electors to sign or not to sign a petition. Section 23-17-57(3) makes it unlawful to compensate a petitioner based on the number of signatures obtained or petitions circulated. Our first question is whether or not the Secretary of State shall refuse to file an entire petition (i.e., a complete petition with 98,336 certified signatures) if only one signature shall be found in violation of the above referenced statutes.

In response, Section 23-17-23 of the Mississippi Code as amended by House Bill 472 of the 1996 Regular Session provides:

The Secretary of State shall refuse to file any initiative petition being submitted upon any of the following grounds:

(a) That the petition is not in the form required by Section 23-17-19;

(b) That the petition clearly bears insufficient signatures;

(c) That one or more signatures appearing on the petition were obtained in violation of Section 23-17-17(2), Section 23-17- 57(2) or Section 23-17-57(3); [etc.]

It is our opinion that Section 23-17-23 requires the Secretary of State to refuse to file a petition when one or more of the signatures appearing on it are obtained in violation of Section 23-17-57(2) or Section 23-17-57(3).

We would point out that House Bill 472 has been submitted to the United States Department of Justice for preclearance under Section 5 of the Voting Rights Act but has not yet been precleared. Also, we remind you that we do not render opinions regarding the constitutionality of statutes passed by the Legislature. For your information, however, the United States Supreme Court has declared a state statute prohibiting any payment of persons to circulate initiative petitions to be an unconstitutional restriction on political speech. Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886 (1988) (unanimous decision). Applying the decision in Meyer v. Grant, a federal district court has held that a state statute prohibiting payment of persons to circulate initiative petitions on a per-signature basis was unconstitutional. Limit v. Maleng, 874 F. Supp. 1138 (W.D. Wash. 1994).]

You also ask as follows:

Our second questions refers to the factual determination of whether a violation of 23-17-17(2), 23-17-57(2), or 23-17-57(3) has occurred. We note that 23-17-61 makes it a violation of criminal law to violate Sections 23-17-49 through 23-17-59. Accordingly, the position of this office is that a court of competent jurisdiction must make a determination of a violation of 23-17-57(2) or 23-17- 57(3) before the Secretary of State would have the AUTH ority to refuse to file an initiative petition based on allegations that either of those paragraphs have been violated. The Secretary of State has no independent authority to conduct an investigation into an alleged violation of 23-17-57(2) or 23-17-57(3), therefore it lacks a means to make conclusive factual determinations regarding any such allegations. Our Second question is, therefore, may the Secretary of State make independent determinations of violations of 23-17-57(2) and 23-17-57(3), or should the Secretary of State defer to the authority of a court of competent jurisdiction to make such determinations in accordance with 23-17-61?

In response, 23-17-57(2) states: "It is unlawful for a person to give or offer any consideration to an elector to induce the elector to sign or not sign a petition for a measure." Section 23-17-57(3) states: "It is unlawful for any person that pays or compensates another person for circulating a petition or for obtaining signatures on a petition to base the pay or compensation on the number of petitions circulated or the number of signatures obtained." As you note, there are criminal penalties for violations of these provisions.

It is our opinion that the Secretary of State may adopt whatever policy he feels appropriate in determining whether either of these violations have occurred with respect to a particular petition. The Secretary of State may require that a court of competent jurisdiction first make a finding of such violations before refusing to accept a measure for filing.

You also ask:

Our third question refers to the AUTH ority of the Secretary of State to change the design of the initiative petitions in order to comply with Section 23-17-17(2). The Secretary of State's Office intends to design initiative petition forms to require that an affidavit or oath be printed on each page of a petition in which a petition circulator must declare that he or she is a qualified elector of this state, and the petition circulator has personally witnessed each signature on the page of the petition. While such an oath or affidavit is not specifically required by statute to be printed on each page of a petition form, completion of it by the petition circulator would provide a rational means of indicating compliance with 23-17-17(2). Section 23-17-19 directs the Secretary of State to "design the form each sheet of which shall contain the following" and then sets forth certain language that must appear on the form. It does not appear to preclude additional language to help ensure compliance with the statutes.

It is our opinion that the Secretary of State may require that each petition circulator declare that he meets the requirements of 23-17-17(2) in writing, and may incorporate such declaration into the form of the petition.

Your final question is:

Our final question relates to Section 5 of HB 427, which creates new Code Section 23-17-60, and allows persons to have their names removed from initiative petitions upon the filing of an appropriate affidavit with the Secretary of State. In order to have sufficient information to find and remove a signature from a petition, the Secretary of State's Office intends to design an affidavit which any person could use to have their name removed from a petition. Although there is no specific language in the statute regarding the precise language that must be in the affidavit, the Secretary of State's Office would require, at a minimum, for the affiant to provide his or her full name as it appears on the petition, the affiant's county of residence and home address. Our question, then, is can the Secretary of State's Office require that affidavits filed in accordance with Section 23-17-60 be in a format prescribed by the Secretary of State?

In response, Section 23-17-60 provides:

Any person who alleges that his or her signature on an initiative petition was obtained as the result of fraud or coercion or that the person was intentionally misled as to the substance or effect of the petition, may have his or her signature removed from the initiative petition upon filing an affidavit to such effect with the Secretary of State any time before the Secretary of State has accepted and filed the petition under Section 23-17-23.

It is our opinion that the Secretary of State may require an affiant under this code section to provide such information as is necessary for the Secretary of State to locate and identify that person's signature on the petition.

Very truly yours,

MIKE MOORE

ATTORNEY GENERAL

By: Mike Lanford Assistant Attorney General

ML:sm